Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 231 (GAU)

Rajib Kakati Ali v. State of Assam

2014-02-25

C.R.SARMA

body2014
JUDGMENT C.R. Sarma, J. 1. Heard Mr. T.J. Mahanta, learned counsel, appearing for the appellant. Also heard Mr. BJ Dutta, learned Additional Public-Prosecutor, Assam appearing for the sole State respondent. This appeal is directed against the Judgment and Order, dated 25.05.2011, passed by the Learned Sessions Judge, Golaghat in Sessions Case No. 14/2007, whereby and whereunder the learned Sessions Judge convicted the accused/appellant under Sections 307 IPC and sentenced him to suffer R.I. for 7(seven) years and pay a fine of Rs. 5,000/- (Five thousand), in default to suffer S.I. for another period 3 (three) months. 2. The prosecution case, in brief, is that, on 11.11.2006 at about 6 p.m. at New Amolapatty of Golaghat town, while Shri Parikshit Borah (PW2) was returning home from the market, the appellant assaulted him with a dagger, causing injury to his head and other parts of his body. The injured person was immediately shifted to the Kushal Konwar Civil Hospital, Golaghat wherein he was required to undergo medical treatment for his injuries for 2 (two) days. Thereafter, the injured person was shifted to Dibrugarh Medical College & Hospital for further treatment. 3. The brother of the injured person, namely Shri Pranjit Borah (P.W. 1), lodged an FIR on 12.11.2006 (Ext. 1) with the police. The said FIR was registered by the police as Golaghat Rs. Case No. 534/2006 under Sections 326/307 IPC and Police launched investigation into the matter. 4. During the course of investigation, the police apprehended the appellant and produced him before the injured person in, the hospital, wherein the latter was undergoing treatment. The accused person was identified by the injured, on being so produced before him in the hospital, and accordingly the appellant was arrested by the police. 5. The appellant and other witnesses were also examined by police and the injury report was collected from the hospital. At the close of investigation, the police submitted charge sheet under Sections 326 and 307 IPC. The offence being triable by the Court of Sessions, the learned Addl. Chief Judicial Magistrate, Golaghat committed the case to the court of Sessions for trial. Accordingly, the learned Sessions Judge framed charges under Sections 326 and 307 IPC and the same being read over and explained, the accused (appellant), pleaded not guilty and claimed to be tried 6. The offence being triable by the Court of Sessions, the learned Addl. Chief Judicial Magistrate, Golaghat committed the case to the court of Sessions for trial. Accordingly, the learned Sessions Judge framed charges under Sections 326 and 307 IPC and the same being read over and explained, the accused (appellant), pleaded not guilty and claimed to be tried 6. The prosecution examined as many as 6 (six) witnesses, including Medical Officer (PW 3) and the Investigating Officer (I.O.) i.e. PW 6. At the conclusion of the trial, the accused person was examined, under Section 313 Cr.P.C. He denied the allegations, brought against him. 7. Having heard the learned counsel for the parties and considering the entire materials, on record, the learned Sessions Judge, Golaghat found the accused person guilty of the offence, under Section 307 IPC and accordingly convicted and sentenced him, as indicated herein above. 8. Being aggrieved by the impugned conviction and sentence, the accused person, as appellant has come up with this appeal. 9. Mr. T.J. Mahanta, learned counsel, appearing for the appellant, referring to the evidence, on record, and the statement made by the injured, namely Mr. Parikshit Borah (PW-2), has submitted that there is no-substantive evidence to show that the appellant had assaulted the injured person. It is also submitted that the injured person, in his evidence, clearly stated that, prior to the incident, he did not know the appellant and that he could identify the assailant, who was person with deformed face. It is also submitted that the evidence of the injured that he could identify the appellant in the light of the display screen of his mobile phone is not believable, in as much as, the time of occurrence being 6.00 pm, it was almost dark. It is also submitted that there is no corroboration, in the evidence of PW 2, to believe that, none other than, the appellant had assaulted the injured person. In view of the above the learned counsel, for the appellant, has submitted that the prosecution failed to prove, beyond all reasonable doubt, that the appellant had committed the alleged offence and as such, the impugned conviction and sentence, awarded by the learned trial Judge, are liable to be set aside. 10. Controverting the said submission, advanced by Mr. T.J. Mahanta, learned counsel, appearing for the appellant, Mr. 10. Controverting the said submission, advanced by Mr. T.J. Mahanta, learned counsel, appearing for the appellant, Mr. BJ Dutta, learned Additional Public Prosecutor, referring to the impugned Judgment and Order, has submitted that there are sufficient evidence, more particularly the evidence of the injured person, to substantiate the prosecution version and as such the learned Sessions Judge committed no error by awarding the conviction and sentence, as Indicated above. 11. In view of the above arguments, I feel it appropriate to scrutinize the evidence, on record for arriving at a just decision. 12. PW 3: (Dr. Mukul Sarma), who is the Medical Officer, examined the injured person. He stated that the injured was hospitalized on 11.11.06 and that he sustained the following injuries. 1) Incised wound over the scalp on right temporal bone, size- 6" X 1" X 4", bone exposed. 3) There are three incised wounds over the occipital bone. The sizes of the wounds are:-- i) 5" X 1" X bone depth. ii) 4" X 1” X bone depth iii) 3" X 1" X bone depth. 4) Another sharp cutting incised wound in the right hand between thumb and index fingers. Tendom exposed. Bone exposed mixed with blood clot. 5) Another incised wound over left ear on the left side of the temporal bone, size-4" X 1" X 1". 6) All the injuries are recent. 7) All the injuries are grievous in nature and probably caused by sharp cutting weapon. 8) Duration of injury is recent within one hour. The said medical evidence indicates that the PW2 sustained the said injuries on 11.11.2006. Now the question is whether the appellant had caused the said injuries. 13. In the present case, the FIR has been lodged by PW 1 i.e. the brother of the injured person (PW 2). He was not present at the place of occurrence. Therefore, it appears that the FIR was lodged, on being reported to him by the injured person. 14. There is no specific averment, regarding identity of the appellant. It is found that, on being informed, the informant (PW 1) proceeded to police station and found his brother sitting, there, in injured condition. He further stated that, on being asked by him, the injured told him that he (injured) was attacked by a boy with a sharp weapon. Further this witness stated that he was shifted to the hospital for treatment. He further stated that, on being asked by him, the injured told him that he (injured) was attacked by a boy with a sharp weapon. Further this witness stated that he was shifted to the hospital for treatment. The accused was produced in the hospital and on being so produced, the injured has identified him. This witness in his evidence did not disclose that the injured could identify the assailant in the light of the display screen of the mobile phone. 15. Admittedly, the time of offence being 6 PM in the month of November, it was a dark night. The injured, deposing as PW 2, stated that, while he was going to wards his house, the assailant had crossed him and calling him by his name had asked for his cell phone for giving a miss call from his mobile and that, suddenly, he had assaulted him with a kukri i.e. sharp cutting weapon. He further stated that, on being informed by the police, his brother (P.W. 1) had rushed to the police station. 16. In his cross-examination this witness stated that he never saw the appellant prior to the occurrence and that he could identify him, on being produced him before in the hospital He also stated that he could identify the appellant, in the place of occurrence, in the light of display screen of his mobile phone. 17. PW-4: (Shri Susmit Kakoty), who is an independent person, stated that he came to know about the incident from the injured. This witness had no personal knowledge about the occurrence as well as the involvement of the appellant 18. PW-5:(Shri. Dibyajyoti Baruah), who was a friend of the injured person, deposed as PW 5. According to this witness, he came to know about the incident from one of his friends and arriving at the hospital, he found the injured in unconscious condition. He stated that the injured had told him that a boy with deformed face had assaulted him. From the evidence of this witness, it is clear that the injured did not know the accused person, by name, till he was in the hospital. 19. PW-6-(Shri Tarun Kumar Charingia), investigating officer, has been examined as PW No. 6. He stated that he arrested the accused person on 13.11.06 and took no steps for conducting any Test Identification Parade (TIP). 19. PW-6-(Shri Tarun Kumar Charingia), investigating officer, has been examined as PW No. 6. He stated that he arrested the accused person on 13.11.06 and took no steps for conducting any Test Identification Parade (TIP). According to the Investigating Officer (10), he took the injured to the hospital for medical checkup and the injured identified him in the hospital. 20. Considering the above discussed evidence, it appears that none, except the injured person, was present at the time of occurrence. The injured person stated that he did not know the appellant prior to the occurrence. At the time of occurrence also he did not know the appellant. According to the injured i.e. PW 2 he was assaulted by a boy with a deformed face and it was a dark night. It is quiet doubtful as to whether the accused could identify the appellant, in the light of the display screen of his mobile phone. That apart, even if the injured was attacked by a parson with deformed face, in the absence of any other substantive evidence regarding identity of the assailant, it cannot be safely held that the appellant who had facial deformity was the assailant in the absence of any corroborative evidence, it is hard to believe that the appellant was identified by the injured person. From the evidence of the prosecution witnesses it is hard to believe that the appellant was the very boy who had assaulted the injured. 21. The I.O. apprehended the appellant and produced him before the injured person in the hospital, wherein he (PW 2) identified the appellant to be the attacker. Fact remains that the injured person, prior to the incident, did not know the appellant; The IO failed to hold Test Identification Parade, i.e. the procedure laid down for identifying suspected person. The manner in which the appellant was identified by the injured person cannot be accepted, as legal and lawful identification. This feeling the position, evidence of PW2 regarding identification, cannot be accepted. The said identification lacks evidentiary value in the eye of law. 22. The victim clearly stated that he was assaulted by the appellant with sharp weapon i.e. a khukri and that he had sustained injury with bleeding from his head and other parts of his body. But the I.O. failed to seize, any blood stained clothes and the weapon-of assault. The said identification lacks evidentiary value in the eye of law. 22. The victim clearly stated that he was assaulted by the appellant with sharp weapon i.e. a khukri and that he had sustained injury with bleeding from his head and other parts of his body. But the I.O. failed to seize, any blood stained clothes and the weapon-of assault. No explanation has been put forwarded by the I.O. for such lapse. The failure of the Investigating agency to seize the blood stained clothes and incriminating weapon, raises doubt about the veracity of the prosecution story that the injured was attacked with a sharp weapon by the appellant. 23. In this case the sole source of identification, in that-dark night, was the cell phone of the injured. But the said cell phone has not been seized and produced before the court. Therefore, existence of any cell phone, at the time of occurrence, is doubtful. In view of the above, considering the entire aspect of the matter and the materials on record, I find it doubtful to believe the involvement of the appellant with the alleged incident 24. In view of what has been discussed above, I have no hesitation in holding that the evidence of the PWs does not inspire confidence to believe, beyond all reasonable doubt, that the appellant had assaulted the injured person. Law is well settled that if two views are possible, the view which is favourable to the accused person is to be accepted Therefore, the appellant is entitled to the benefit of doubt. 25. In the light of the above discussed evidence, I find that the learned Trial Judge committed error by holding the appellant guilty of the offence under Section 307 IPC and as such the impugned conviction and sentence are liable to be set aside. Accordingly, I do so. Appeal is allowed and the appellant is acquitted. He be set at liberty forthwith, if not required in any other case. Return the LCR.